Epstein v. Secretary, U.S. Dept. of Treasury, 83-1831

• Decision Date: 17 July 1984
• Docket Number: No. 83-1831,83-1831
• Parties: 35 Fair Empl.Prac.Cas. 677, 26 Wage & Hour Cas. (BN 1455, 34 Empl. Prac. Dec. P 34,541, 102 Lab.Cas. P 34,601 Christine EPSTEIN, Plaintiff-Appellant, v. SECRETARY, UNITED STATES DEPARTMENT OF the TREASURY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 274

739 F.2d 274

35 Fair Empl.Prac.Cas. 677,

26 Wage & Hour Cas. (BN 1455,

34 Empl. Prac. Dec. P 34,541,

102 Lab.Cas. P 34,601

Christine EPSTEIN, Plaintiff-Appellant, v. SECRETARY, UNITED STATES DEPARTMENT OF the TREASURY,

Defendant-Appellee.

No. 83-1831.

United States Court of Appeals, Seventh Circuit.

Argued April 18, 1984.

Decided July 17, 1984.

Sheila A. Reilly, Chicago, Ill., for plaintiff-appellant.

Mary Anne Mason, Asst. U.S. Atty., Chicago, Ill., for defendant-appellee.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.

CUDAHY, Circuit Judge.

This is an appeal from a judgment of the district court entered after a bench trial that the Secretary of the Treasury did not violate plaintiff's rights under either Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. ("Title VII") or the Equal Pay Act, 29 U.S.C. Sec. 206(d)(1). ¹ Upon a review of the record, we affirm.

I.

Plaintiff Christine Epstein is a woman employed in the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, ("BATF"). She is the Administrative Officer of the Midwest Criminal Enforcement Region (located in Chicago), and as such she serves as the assistant to the Regional Director of Investigations (the "RDI"). The country is divided into four regions; each region has an RDI and an administrative officer. Three of the administrative officers are women while the fourth, the administrative officer in the Western Region, is a man named James Hester. The genesis of this case lies in the fact that in April, 1980, Hester was promoted to a higher government service grade and thus received a pay increase. ² None of the female administrative officers, including the plaintiff, were similarly promoted.

Hester was promoted after the RDI for the Western Region, John Krogman, took two steps on Hester's behalf. First, he wrote a new job description for Hester's position in which he indicated that Hester's position involved substantial delegated decisionmaking discretion. BATF's Washington, D.C., Chief of Personnel, James Panagis, refused to promote Hester on the basis of the new job description alone because the description did not indicate that Hester had actually been delegated the discretion necessary to justify an upgrade. Thereafter, Krogman prepared an "impact statement" which was designed to illustrate that Hester's performance had changed his job so substantially that an upgrade was justified. ³ The impact statement specifically stated that Hester's experience and ability enabled the RDI to delegate to Hester significant discretionary authority. After receiving this impact statement, Panagis approved Hester's upgrade to GS-9.

After learning that Hester had been promoted, Robert Sanders, RDI for the Midwest Region, sought a promotion for plaintiff as well. Sanders prepared a new job description for plaintiff's position, which was, as the district court found, essentially a carbon copy of the new job description that had been prepared for Hester. Significantly, Sanders did not ever prepare an impact statement for plaintiff.

Plaintiff's new job description and Sanders' request for a reclassification to GS-9 were sent to the BATF personnel department of the Central Region in Cincinnati. It is unclear why Sanders sent the papers to Cincinnati since he testified that in the past all personnel actions for the Midwest Region had been handled in the Chicago office. In any event, the Cincinnati office approved the reclassification but the promotion did not go through because Panagis informed Sanders that the reclassification could only be performed in Chicago. Sanders then resubmitted the request to the Midwest Region Personnel Office in Chicago. The Chicago office performed what is called a "desk audit," in which a Midwest Region official interviewed Sanders and the plaintiff to determine the nature of the plaintiff's duties. This official concluded that 50 per cent of the plaintiff's work was at the GS-9 level but that much of that work was duplicative of work performed by other BATF departments.

James Thompson, Chief of BATF's Management Branch in Washington, denied plaintiff's promotion in February, 1981. ⁴ Thompson's expressed reasons for the denial were that, in his view, much of the plaintiff's work was duplicative and that, in any event, plaintiff had not been delegated enough independent authority to justify a GS-9 grade.

II. Equal Pay Act

A prima facie case of a violation of the Equal Pay Act is analytically quite simple. ⁵ As the district court noted, the plaintiff's initial burden is to prove that "an employer pays different wages to employees of opposite sexes 'for equal work on jobs the performance of which require equal skill, effort and responsibility, and which are performed under similar working conditions.' " Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974) (quoting 29 U.S.C. Sec. 206(d)(1)). See EEOC v. Mercy Hospital and Medical Center, 709 F.2d 1195, 1197 (7th Cir.1983) (applying Corning Glass prima facie case). While the work performed by the two employees (or groups of employees) need not be identical, it must be "substantially equal." EEOC v. Mercy Hospital and Medical Center, 709 F.2d at 1197. See also Corning Glass Works v. Brennan, 417 U.S. at 203 n. 24, 94 S.Ct. at 2232 n. 24. If the plaintiff succeeds in proving a prima facie case, the burden shifts to the defendant to show that any pay differential is justified under one of the Equal Pay Act's four exemptions. 29 U.S.C. Sec. 206(d)(1). These exemptions are "(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex[.]" Id. Because we affirm the district court's finding that a prima facie case has not been demonstrated, we have no opportunity to address the applicability of the exemptions to this case.

The district court found that plaintiff failed to prove that the work she did was "substantially equal" to that done by Hester. The district court pointed out that job descriptions are not determinative of equal work, but, rather, as we noted in Mercy Hospital, the court must weigh the nature of the actual duties performed by the two employees. 709 F.2d at 1197. For plaintiff to prevail, she would have had to show that the two jobs required equal skill, equal effort and equal responsibility. Christopher v. Iowa, 559 F.2d 1135, 1138 n. 14 (8th Cir.1977). ⁶ Thus, even though the two jobs had almost identical job descriptions, the district court was not required to find a prima facie Equal Pay Act violation.

We must review the district court's finding that the two jobs did not involve equal work under the clearly erroneous standard of review, Mercy Hospital, 709 F.2d at 1198. Thus, we will not reverse the district court unless, after reviewing all of the evidence, we are "left with the definite and firm conviction that a mistake has been made." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1945). Upon a review of the record in this case, we find ample support for the district court's conclusion that plaintiff failed to prove a prima facie case.

Plaintiff relies heavily on the job descriptions for her argument that the two jobs involved equal work. As is evident from the discussion of job descriptions, supra, that reliance is misplaced. Plaintiff also attempts to impugn the defendant's position by attacking the failure of Krogman, Hester's supervisor, to testify at trial about what Hester's duties were. Plaintiff would, it seems, have us infer equal work from the defendant's failure to prove otherwise. This line of argument ignores the elementary fact that the burden for proving the prima facie case is on the plaintiff. The plaintiff has not pointed to any record evidence, except the job descriptions, which would tend to show equal work, and on our review of the record we agree with the district court that the record is devoid of any such evidence. Plaintiff's own testimony reveals that she possessed little knowledge of what Hester actually did and that she was delegated little, if any decisionmaking authority. Epstein TR 27, 42. On the other hand, Hester's impact statement indicated that he had been, and would in the future continue to be, delegated substantial independent authority. Sanders, plaintiff's supervisor, could have, but did not, file an impact statement on plaintiff's behalf. ⁷ On this record, the district court was justified in finding that plaintiff had not established a prima facie case. ⁸

III. Title VII

We faced a remarkably similar Title VII issue in Nellis v. Brown County, 722 F.2d 853 (7th Cir.1983). In that case, Nellis, a female, claimed that she was entitled to a reclassification of her job after a similar situated male employee was granted an upgrade. In Nellis, we recognized the Supreme Court's directive that our ultimate task in Title VII cases is to determine whether the plaintiff has proven that the defendant discriminated against her. 722 F.2d at 856-57. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).

The district court found that plaintiff in this case established her prima facie case because she proved that she was generally qualified for an upgrade and that a similarly situated male was given an upgrade. ⁹ See Nellis, 722 F.2d at 857. See also Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). The burden then shifted to BATF to articulate a legitimate, nondiscriminatory reason for the failure to upgrade plaintiff. Id.; Aikens, 103 S.Ct. at 1481; Nellis, 722 F.2d at 857. This reason, of course, would have to justify the different treatment accorded Hester and plaintiff. Cf. Nellis, 722 F.2d at 860-61....